A judge said she may have no choice but to let a murder suspect back out on the streets, and the Metro Crime Lab is at fault.

Jesse Chavez is accused of breaking into a southwest home and shooting the two men who stumbled upon the crime. One of those men, the son of state Rep. Ernest Chavez, no relation, died in the shooting.

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Jesse Chavez has been in jail for a year now, but there’s one glaring problem: A judge said there’s no proof he committed the crime.

“Mr. Chavez has been in custody accused of this with absolutely no evidence holding him in custody,” said Judge Christine Argyres.

She said the evidence sent to the Metro Crime Lab was never tested.

“The DNA testing ended up where it is now based on negligence of the state lab,” said Argyres.

The District Attorney’s Office has been asking the metro lab for the tests since June, but the analyst who was supposed to do the work left, and the case wasn’t reassigned.

The evidence sits in an unchecked file.

Recently the case was reassigned, but the lab said it’s going to take another eight weeks for a new analyst to begin testing.

Albuquerque police have declined to comment on the lab or DNA testing at this time.

Jesse Chavez's attorney has said he's aware of a pair of bloody shorts, which he said does not belong to his client. He said he doesn't know whose blood is on the shorts.

The Bernalillo County Sheriff's Department said it submitted evidence to the Albuquerque Police Department's lab for processing Oct. 10, 2012.

Jesse Chavez’s attorney also said it’s time for him to be set free and filed a motion demanding he be released.

The state said a grand jury found probable cause, which should be enough reason to keep Jesse Chavez in custody.

The judge is ordering a new hearing to give the state one last chance to prove it has evidence against Chavez in the case. If not, his time behind bars might be cut short.

The evidentiary hearing is Nov. 6.

Jesse Chavez was held in Polk County, Texas. The judge has ordered him to be moved to the Metropolitan Detention Center until the hearing.